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Thread started 30 Oct 2012 (Tuesday) 21:40
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The SyFy Channel is Stealing From Me!

 
sfaust
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Sep 02, 2013 19:53 |  #31

I use Cornell Law for many legal question as they have a easily searchable database, and I trust their info.

These all reference the need to have the images pre-registered to take advantage of all the remedies set forth in the copyright act, such as recouping attorneys fees and statutory damages. I've also heard from ASMP/Jeff Sedlik, and other IP attorneys in seminars and on-line presentations that in order to file a lawsuit in federal court under the copyright act, a per-requisite is registration.

http://www.copyright.g​ov/title17/92chap4.htm​l#412 (external link)
§ 412 . Registration as prerequisite to certain remedies for infringement12
In any action under this title, other than an action brought for a violation of the rights of the author under section 106A(a), an action for infringement of the copyright of a work that has been preregistered under section 408(f)before the commencement of the infringement and that has an effective date of registration not later than the earlier of 3 months after the first publication of the work or 1 month after the copyright owner has learned of the infringement, or an action instituted under section 411(c), no award of statutory damages or of attorney’s fees, as provided by sections 504 and 505, shall be made for —
(1) any infringement of copyright in an unpublished work commenced before the effective date of its registration; or
(2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work.

Copyright.gov Circular 92 Chapter 5 504.c
http://www.law.cornell​.edu/uscode/text/17/41​2 (external link)
http://www.law.cornell​.edu/uscode/text/17/50​4 (external link)
http://asmp.org …ation-counts#.UiUsyrye7K4 (external link)

Current through Pub. L.*113-31. (See*Public Laws for the current Congress.)
In any action under this title, other than an action brought for a violation of the rights of the author under section106A*(a), an action for infringement of the copyright of a work that has been preregistered under section*408*(f)before the commencement of the infringement and that has an effective date of registration not later than the earlier of 3 months after the first publication of the work or 1 month after the copyright owner has learned of the infringement, or an action instituted under section*411*(c), no award of statutory damages or of attorney’s fees, as provided by sections*504*and*505, shall be made for—
(1)*any infringement of copyright in an unpublished work commenced before the effective date of its registration; or
(2)*any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work.
LII has no control over and does not endorse any external Internet site that contains links to or references LII.

KirkS518 wrote in post #16261376 (external link)
Where did you read that? I'd like to see it. It may limit 'statutory damages', but it wouldn't have an effect on punitive damages, which are usually obscene. Statutory damage minimum in the US is $750 per work, with the Supreme Court 'recommending' punitive damage be in the range of 4 to 10 times the actual damages (in this case statutory damages would be the same as actual damages), so the potential for an unregistered copyright violation could realistically be $4250 - $8250, unless the jury (and judge) agree to more. Registered or unregistered (from what I've seen) doesn't matter.

I never mentioned punitive damages. But if punitive damages are obscene at 4-10 times actual, statutory damages as uber-super-obscene at up to $30K per image infringement, to up to $150K per image for willful infringement. If I were entering court to fight a lawsuit, I would defnitely want statutory damages on the table, as well as attorneys fees, but not available without registration.

There is a reason Punitive damages got the slang turn puny ;)


Stephen
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rx7speed
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Sep 03, 2013 02:11 |  #32

http://www.law.cornell​.edu/uscode/text/17/50​4 (external link)
only seems to say that statutory damages or actual damages are available to the person making the claim.

sfaust the links you post only say that statutory damages are off the table if not registered. It does not limit your ability to file a lawsuit from what I've been reading ( not a lawyer again I must say) but does limit your ability to collect a nice payout. Without a timely filing you are limited to actual damages and if I'm reading this right the infringers profit minus any expenses other then the infringing work minus any profit that could be attributed to other's work. It's just at that point you need to have some hefty damages and the infringer would need to have a decent profit to make it worth your time though


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Dan ­ Marchant
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Sep 03, 2013 05:14 as a reply to  @ rx7speed's post |  #33

US Copyright act section 411 http://www.copyright.g​ov/title17/92chap4.htm​l#411 (external link)

§ 411 . Registration and civil infringement actions11

(a) Except for an action brought for a violation of the rights of the author under section 106A(a), and subject to the provisions of subsection (b), no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.


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sfaust
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Sep 03, 2013 08:30 |  #34

Dan Marchant wrote in post #16263521 (external link)
US Copyright act section 411 http://www.copyright.g​ov/title17/92chap4.htm​l#411 (external link)

§ 411 . Registration and civil infringement actions11

(a) Except for an action brought for a violation of the rights of the author under section 106A(a), and subject to the provisions of subsection (b), no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.

Thanks Dan, I thought I had included that above, but obviously hadn't.


Stephen
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rx7speed
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Sep 03, 2013 13:06 |  #35

Well looks like I might be mistaken :-)

good find and thank you.


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KirkS518
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Sep 03, 2013 15:36 |  #36

Thanks for posting that Stephen. Interesting stuff (sort of) :)


If steroids are illegal for athletes, should PS be illegal for models?
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sfaust
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Sep 06, 2013 04:31 |  #37

rx7speed wrote in post #16263334 (external link)
It's just at that point you need to have some hefty damages and the infringer would need to have a decent profit to make it worth your time though

One benefit to the statutory damages is that you don't necessarily have the same burden of proof. The copyright ownership is pretty much a given with registration, and the infringing party will have the burden of trying to prove otherwise. Without it, the photographer has the burden to prove their ownership. Not a big deal, but time and expense wasted, especially if the infringing parties lawyer wants to drag it out.

Second, its also harder to prove damages with regard to the infringing parties sales and profits. Since they own that data its harder to get. And the possibility exists, with financial motive, for them to cook the books to show minimal damages. With registration, if its hard to prove damages at least the statutory damages help fill that void.

To me, damages is like being made to pay a few times over retail for an item if you get caught walking out of the store. For a shoplifter, that's not a bad tradeoff, a slap on the wrist. Statutory damages is like paying for the item same as above, plus another fine up to $30K-$150K. Its the statutory damages that most infringing parties fear, not the damages themselves. With most US photographers not registering their images, they give the infringing parties a free pass.

No body really listens when the owner complains their car was stolen once they find out he left it on the side of a road, in a bad neighborhood, with the keys on the dashboard. Thats kind of what we are doing with our own images :(


Stephen
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sfaust
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Sep 06, 2013 04:34 |  #38

KirkS518 wrote in post #16264992 (external link)
Thanks for posting that Stephen. Interesting stuff (sort of) :)

rx7speed wrote in post #16264537 (external link)
good find and thank you.

Both welcome :)

And yes, PS should be illegal for models, and food, and... Nothing ever looks as good in person as it did in the photograph! ;)


Stephen
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The SyFy Channel is Stealing From Me!
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